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9/21/2009

Will Forensic Psychologists be involved in the Phillip Garrido case?

A reporter called me the other day to ask a hypothetical question about the parolee, who along with his wife Nancy, stands accused of kidnapping and sexually assaulting Jaycee Lee Dugard. Our conversation turned to a discussion of what might happen as the case proceeds. I mentioned that forensic psychologists would likely be called into the case at a few different phases.

{The attorney for Phillip Garrido has already asked the Court to appoint either a psychologist or psychiatrist to conduct an examination. The Court's approval of that request has been described in the media in a few different ways. The attorney could have just hired someone for this task, without asking the Court. The only reason to have asked the Court to appoint someone is so that the funding would come from the Court, and not from the Public Defender's budget. In El Dorado County, there are currently some real serious budget issues and this is going to be a very expensive case.}

At the current time, we know very little about Garrido's mental health status and history. What we know is that his father has told the news media that he was a "good boy" who changed after a motorcycle accident and after drug use. We know that Garrido wrote on a blog that he developed an ability and/or a device to control sound with his mind. We know that he called Walt Grey, a well known Sacramento TV news reporter (KCRA Channel 3) and told him that he had an incredible story to tell. He said it as if he thought people would welcome his story and like it was a good thing. There is enough in these bits of information to conclude that he is somehow and in someway psychologically disturbed. If it's true that he "changed" suddenly after a motorcycle accident, it could be the case that he suffered some type of brain injury.

We also know that Garrido was described by a psychologist years before as being a "sexual deviant." And, we know that he was previously convicted for a horrific crime.

It could be that Garrido "just" has a warped personality or what we call a character disorder. Whatever his mental health status, we know at least that much from his criminal history.

So will forensic psychologists or psychiatrists be involved as his case proceeds towards trial? The answer is almost certainly yes. Although we know much less about her from the news reports, the same is also true for his wife Nancy, who has also been arrested in this matter.

There are at least three phases in which psychologists might be involved.

Psychologists might first be involved in consulting with the defense attorneys and helping them understand: "what's going on?"

In cases like this, where there are strange circumstances and strange behavior, it is common for defense attorneys to hire forensic psychologists for the purpose of understanding the case and understanding the defendant. The attorney will turn to the available evidence to figure out what the accused might have done. And they will often turn to a psychologist to figure out why the person did it. In a case like this, the motive might be simple, or it might involve a complex set of psychological dynamics. The motive might be of little or no significance as the attorney formulates a defense strategy, but on the other hand, it could be that the attorney needs to consider some type of "mental defense." For many types of crimes, the prosecution must prove that the accused acted with a certain "intent." Even if it seems obvious on the surface, the defense attorney needs to figure out exactly what the person had in mind.

A consulting psychologist is typically able to answer these questions and to make certain that the defense attorney has all the information needed to provide a full, fair and effective defense. One of the first things the defense attorneys will have to determine is whether there is any doubt about the mental competency of either Phillip or Nancy Garrido and whether or not there is reason to pursue an insanity defense in either case. It is something that the attorneys at least have to consider.

If the defense decides that it must "declare a doubt" about the competency of either defendant, two psychologists and/or psychiatrists will be appointed to examine them.The competency question doesn't have anything to do with whether or not they were crazy when they committed the crime. It has to do with whether or not they are mentally disordered now. Competency is about whether or not mental disorder is serving to prevent them from enjoying due process and effective representation. It's about whether or not mental disorder might prevent them from getting a fair trial. If they are disordered in some way that prevents them from understanding the proceedings or that prevents them from working with their attorney in a rational way, then they could be found incompetent.

People often think that competency proceedings are just a defense tactic. But in fact, both the prosecution and the defense have an interest in making sure that the accused knows what's going on. If the question comes up and is not clearly settled, the defendants end up with an issue that they can raise on appeal, a basis for arguing that they didn't get a fair trial.

In competency proceedings, it's sometimes the case that the psychologists will find that the person cannot understand the proceedings. More often, people are found incompetent because they cannot rationally assist their attorney. Often times, this has to do with some crazy idea that they have about how they want to defend their case. They insist that the attorney put on evidence that will certainly lead to conviction, or they insist that the attorney make some argument that is inherently crazy and self-defeating.

As an example, a defendant might insist that their attorney subpoena the President, the head of the CIA and the Prime Minister of Russia to prove that they really did own the World Bank and that the Army intelligence services were trying to poison them and steal their thoughts. Stuff like that often comes up in homicide cases where the disordered offender wants to say that the crime involved necessity or self-defense. In the Unabomber case (Ted Kaczynski), the defense asked for a competency examination because the defendant would not give any consideration to an insanity defense and wanted to argue that he had to do it. In the Garrido case, it could be like the Unabomber situation where the defense decides that the only possible defense is to argue insanity. If for some crazy reason Garrido refuses to at least consider their advice, they might need to express the doubt about his competency.

The doctors who would be appointed to examine him (or his wife Nancy) are not the ones who will make the final decision. They will offer opinions. After their reports are received, the defense and prosecution could decide to submit the matter to the Court and let the Judge decide. If there is a competency trial for either Phillip or Nancy, the prosecution will undoubtedly insist that it be a jury trial and not a trial in front of a Judge. The prosecution will want members of the community to consider the evidence and make the decision.

What happens if either of them are found incompetent for some reason? They would then be committed to a State Hospital for treatment and the case would be delayed. It won't go away and they will not have escaped judgment. The hospital will send them back to be tried as soon as possible, perhaps as in little as a few months.

It may be that the defense attorneys will not raise the competency question. This is one of the reasons they would have obtained consultation from a psychologist early on in the case. It is often the case that I write letters for attorneys saying that competency is not an issue. They put that report in their file and it is never seen unless the issue comes up on appeal.

The third way in which psychologists might be involved is if either Phillip or Nancy decide to pursue an insanity defense. There are occasions when defendants really have no other defense to offer. Sometimes, the evidence pointing to guilt is substantial and overwhelming and the only thing the defense can do is to try to argue that they were crazy when they did it. That was how it was in the Unabomber case.

If the defense enters an insanity plea, two more Doctors will be appointed to examine the defendants. Under California case law, this will typically not be the Doctors who offered opinions in any competency proceeding.

The difference between competency and insanity is this: competency is about how they are doing now (does mental disorder prevent them from receiving a fair trial?); sanity is about how they were thinking when the crime was committed (at that time, did they know what they were doing and did they know that it was wrong?).

The sanity question will be considered by the jury only if they are found guilty. In other words, it will be a separate, second trial. Evidence about any mental illness they might have been suffering can be admitted to the "guilt phase trial" only under certain circumstances and only with certain limitations.

If someone is found to be insane, they are committed to the State Hospital for a period of time that is not any longer than what they would have been sentenced to if they were simply found guilty and sent to prison.

If either of them is found insane, could they ever get out of the State Hospital? The proceedings involved in getting "restored to sanity" and getting out are rather complex. In this case, the short answer is that as a practical matter, no, they would never get out of a locked and secure facility.

What are the odds that Phillip or Nancy might actually be found insane? Not good. It is a judgment made by a jury, reflecting the judgment of the community. This is not a commonly successful defense, no matter what you might have seen on TV. Juries don't like this defense and rarely rule that a defendant is insane unless the circumstances of the case are exceedingly compelling. In the media, we have already gotten a good sense about how the community feels about this crime and these defendants.

The reporter I spoke to about this case also asked me if Garrido might be offered a plea bargain and whether this might be resolved without a trial. My answer was no, there won't be any plea bargain offered. In this case, there is nothing to bargain with. It's not a death penalty case, so the prosecutor can't offer life in prison in exchange for a guilty plea. And given the nature of the case, no prosecutor will offer anything that does not make it certain that Garrido spends the rest of his life in prison. In other words, there is no room for negotiation. In many cases, psychologists provide information about a defendant that helps the DA and the defense understand the case, and sometimes that information is used to help inform the plea bargain negotiations. I don't think that will happen with either of the Garridos.

On a final note, people sometimes ask about the role of psychologists in the criminal courtroom. Some people will say that we are like the "whores of the court." That is not at all the reality. Most of us who do this type of work typically have little or no interest in how the case turns out. We provide explanation, not excuse, and what we do is mostly about insuring that the accused has enjoyed due process. No matter how heinous the crime and no matter how "obvious" it might be that a person is guilty, our system and our values require that they be fully represented and that they get a fair trial. When someone is put away, the last thing we ever want is for someone to say that it was because the system wasn't fair or that the verdict wasn't just.